Bio-Law I - reproductive autonomy and abortion Flashcards
What is reproductive autonomy (RA) and why is it important?
one’s freedom to decide whether or not to have offspring. It involves both ‘not to reproduce’ and ‘to reproduce’.
Robertson - control over this is central to someone’s identity, dignity and meaning of life and can impact ones psych/social identity - e.g. cultural - romani comms children = most important values in life
Reproductive Autonomy - Compulsory sterilisation
Nazi july 1933 - law allowed forced sterilisation of germans with physical/mental conditions assumed to be hereditary such as “feeblemindedness,” schizophrenia, epilepsy, Huntington’s chorea, bipolar disorder, and alcoholism, along with other congenital defects. 400,000 people were sterilised. - But this is not a thing of the past
India 1975 - 6.2 million men sterilised in a year - 15 x ppl by nazis
2013-2014 - nearly 4 million sterilisations, almost all women (population control)
How is RA protected?
protected by law e.g. ECHR article 9
usually a negative right - protects individuals against from state interference and restrictions (eg compulsory sterilization: sterilisation against someone’s will)
sometimes positive right- state resp to help ppl with reproductive decisions - UK - NHS will cover IVF for free if meet criteria
access to abortion = protecting right - positive right esp when med risk to pregnancy - in some countries may not have access to abortion in many countries if there is a risk to women then abortion is allowed
S.H. and Others v. Austria - right for couple to conceive a child and med assisted procreation = A.8
look at context - social norms e.g iceland no pregnancies with down syndrome as get abortion
What is Abortion?
pregnancy is ended so that it doesn’t result in the birth of a child.
Sometimes it is called ‘termination of pregnancy’.
Medical abortion: The abortion pill (two stages: misoprostol 1st drug taken at the clinic, and mifepristone 2nd taken at home) - causes bleeding and pregnancy is terminated
Surgical abortion: Minor operation. - for further stages of pregnancies and done under anaesthesia
Vacuum aspiration up to 15 weeks
Dilatation and evacuation between 15 and 24 weeks - UK law = up to 24wks
Early Medical Abortion
2020 - gov approved mifepristone for purpose of early med abortion due to covid - imposs for ppl to go to clinics
Abortion statistics
England and wales 2022 - 251,377 - highest number since abortion act 1967 introduced
80% take place in first 10 wks
86% of abortions were medically induced in 2022; which increased from 85% in 2020, and increasing by 38 percentage points since 2012.
The availability of medical abortions as a method of abortion is likely to have contributed to the increase in the overall percentage of early abortions. - it is easier
In 2022, 99.9% of abortions were performed under the social ground (less than 24 weeks and risk to women’s physical or mental health).
Abortion and ethics: Moral status of embryo
Personhood by conception: Foetus is a person from conception (Finnis, 1973) - cannot take plan B pill
- why do we give ppl with severe mental disability rights but an embryo doesn’t just because of the arg that they cannot make their own decisions - abbot 1978
(Gillon, 2001) - proven that 22wk old can survive in NICU with help so shouldn’t be terminated at 24 wks
Abortion is ‘ loss of future’ and ‘killing’, - marquis 1989
Foetus is a human, but not a person, whereas a woman is a person. Foetus’ rights doesn’t trump woman’s rights (Warren, 1973)
To give embryo a right not to be killed would give them a right to satisfy their needs at the expense of another person’s autonomy (Brown, 2000)
Many significant events take place at birth: it is the most complex adaptation process (Greasley, 2017)
If abortion is loss of future what about using contraception? (Savulescu, 2002) Middle way is personhood increases with gestational age (it is a utilitarian justification for abortion)
Middle way is personhood inc with gestational age - utilitarian justification for abortion
Abortion and ethics: Reproductive autonomy
To be pregnant is to be inhabited. It is to be occupied.’ (Little, 1999):
McDonagh 1999 - having an unwanted baby is likened to having an injury which is given by consent to sex - you havent given consent to having a baby and carrying a baby full term is more risky than having an abortion - a woman’s right to an abortion does not necessarily depend on whether the fetus is a person.
Abortion and ethics: Legal compromise
fetus potential personhood and pregnant woman self determination = compromise - abortion = permitted within parameters - 24 wks
fetus doesnt have right to live, even conservatives acknowledge exceptions e.g. abortion is permitted when it is necessary to save the woman’s life
in ireland a woman died due to a toxic pregnancy and not allowed abortion - now law changed and in poland giving birth would mean mother went blind and she was forced to give birth
Human rights and abortion
P v British Pregnancy Advisory Service
husband appleid to stop estranged wife having an abortion - held fetus had no rights of its own until separate existence from mother - appeal ECHR declared even if fetus had right to life (court declined to find) right would be constrained when womans life was in jeopardy - husband or mother does not have say, decision for medical practitioner and she was allowed to terminate pregnancy
Vo v France - death of fetus due to negligence - french doctor mistakenly ruptured a pregnant woman’s amniotic sac when he mistook her for another patient who was not pregnant. ECHR decided that there was no consensus on the moral status of the foetus. Foetus was a member of the human race but whether its right to life was protected by Article 2 was indeterminate. - not clear whether a feotus has a right to life
Tysiac v Poland (2007) 45 EHRR 42 a woman with severe disease which advanced with pregnancy attempted unsuccessfully to obtain abortion. ECHR held that Polish government had violated her Article 8 right in its failure to offer women full access to reproductive health services. - she was going to turn blind if had pregnancy - went to ECHR and violated A.8 right
II. Abortion and the Law Right to abortion
Is it justifiable for a state to deny abortion services leading women to other methods e.g. clothes hangers, throwing themselves down the stairs etc
SC roe v wade US - 1973 - abortion = constitutional right
right to privacy ‘is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy’.
Right to abortion in US
Roe v. Wade (1973) – Landmark Supreme Court decision that recognized a constitutional right to abortion under the 14th Amendment’s Due Process Clause (right to privacy).
Planned Parenthood v. Casey (1992) – Reaffirmed Roe but allowed states to impose abortion restrictions as long as they didn’t create an “undue burden.”
Overturning of Roe v. Wade
Dobbs v. Jackson Women’s Health Organization (2022) – Supreme Court decision that overturned Roe, stating that abortion is not a constitutional right. - left states to decide on the matter and some states immediately started introducing laws to terminate abortions
Legal Impact: Gave states full power to regulate, restrict, or ban abortion without federal constitutional limits.
14 states enacted near total abortion bans, georgia and S. Carolina banned abortion past 6 wks (dont even know preg esp if periods = irregular)
‘Heartbeat’ bills
2010s Republican leaning states such as Ohio, Georgia, Louisiana, and Missouri has attempted to outlaw abortion or to place stringent restrictions on it. - forbid abortion when a fetal heartbeat can be detected—at six to eight weeks after fertilization, when a woman may not know that she is pregnant.
blocked by courts - but abortion = less available to women
Ohio tried to introduce bill where with ectopic pregnancies, doctors try put it back in womb
Right to abortion in US - Bioethical and Human Rights Perspectives
low income and minority women = marginalised as force ppl to travel thousands of miles to access abortion or carry preg against will
–abortion bans are violation of reproductive rights.
UK Legal Framework for Abortion
England and Wales
Offences Against the Person Act 1861 - makes abortion illegal
Infant Life (Preservation) Act 1929-s1(1) makes abortion illegal
Abortion Act 1967 - safeguard for medical practitioners who want to provide legal abortion services
Scotland
Common law crime - abortion is a crime
Abortion Act 1967
Northern Ireland
Offences Against the Person Act 1861 (repealed in 2019)
Criminal Justice Act 1945 Section 25 (common law defence)
The Abortion (Northern Ireland) Regulations 2020 - abortion is legal right
Statutory Provisions
Offences Against the Person Act 1861
- S.58: act with intent to procure miscarriage - Directed at pregnant woman’s actions (if she intentionally ends her own miscarriage the maximum sentence is life imprisonment) - e.g. takes abortion pill without doctor - S.59: unlawfully supplying or procuring poison/noxious thing/instruments for woman ...woman will be guilty if she is in fact ‘with a child’ (if a woman mistakenly believe that she was pregnant she would not be guilty of trying to end it.) Whosoever unlawfully help her will be guilty regardless if she is with a child. - woman and doctor would be guilty
Infant Life (Preservation) Act 1929- s1(1)
- Makes destruction of a child an offence - This involves causing death of child capable of being born alive - abortion - child not feotus - wording is vague - No offence if act done in good faith to preserve mother’s life (It should not be done ‘unlawfully’). What does ‘unlawfully’ mean here? That doctors can operate to save the life of a woman. - Relevant at introduction of Abortion Act 1967
Reasons for legislation: Abortion Act 1967
- High demand for abortions
- High mortality rates from backstreet abortions
- To provide (limited) statutory defence to the crime of abortion
- But to prevent women access to abortion ’on demand’ - doesn’t say women have right to abortion only to protect med practitioners from criminal offence
medical and political issue but patient doesn’t have a right it is the medical practitioners decision whether or not to provide it
abortion act = exception to illegality - need 2 med practitioners to decide - any other way = illegal e.g. obtaining drugs online
Sarah catt = guilty 2014 sentenced to 8 years in prison, reduced to 3.5 on appeal
Abortion Act 1967, as amended
Amended by Human Fertilisation and Embryology Act 1990, s. 37 Provides that:
Person not guilty of an offence if termination is:
- Performed by a registered medical practitioners - Two registered practitioners have formed an opinion in good faith - That person’s circumstances fall within one of the four grounds for abortion - in practice not how it works - pre signed forms you don’t need 2 doctors only one
preg not over 24 wks, continuance of preg = risk, greater than if preg = terminated or of injury to physical/mental health of preg woman or any existing children of family (a)
necessary to prevent grave permanent injury to phys/mental health (b) risk to the life of the pregnant woman, greater than if the pregnancy were terminated; (c) substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. (d)
Section 1(1)(c) risk to life
Most commonly used ground:
- Accounted for 99.9% of all abortions carried out in England and Wales - Continuance of the pregnancy would involve risk to the life of the pregnant woman greater than risk if pregnancy were terminated - Not necessary that abortion removes risk - The law permits abortion up to 24 weeks under this ground - Most abortions in the UK are justified under the risk to mental health rather than physical health.
Ground 1(1)(d) Fetal Abnormality
- Substantial risk of fetal abnormality
- If the child were born it would suffer from physical or mental abnormalities as to be seriously handicapped
- 1% of all abortions in UK under this ground
- Abnormality – serious, risk substantial
- Discretion for doctors on meaning of ‘serious’, ‘substantial’
Guidance by Royal College of Obstetricians and Gynaecologists:
Crowter v Secretary of State for Health and Social Care
three claimants challenged the disability ground for abortion contained in section 1(1)(d) of the Abortion Act 1967. - child with down syndrome had beautiful lif but law is discriminatory as unwanted baby as can be terminated at any stage whereas normal ppl = before 24 wks so inc stigma towards disabled ppl and are they less than others
arg incompatible with A.8 and A.14 - provision perpetuates discriminatory attitudes and negative stereotypes towards disabled people.
rejected
Rights of the father
Paton v Trustees of the British Pregnancy Advisory Service
Husband sought injunction to restrain defendants from terminating estranged wife’s pregnancy - rejected - no right to mother or father but obvs mother is going to be at heart of matter when consulting with doctors
Later dismissed by the European Court of Human Rights
- Woman’s Article 8 rights prevailed.
Followed in C v S [1988] QB 135
- Injunction to prevent girlfriend having a termination - refused
Ireland - The Abortion Act 1967 was never extended to Northern Ireland.
NI had the harshest criminal penalty for abortion of any country in Europe - women had to come to england and scotland and wales (great britain)
Re (Northern Ireland Human Rights Commission’s Application for Judicial Review)
law prohib abortion in cases of rape , incest and serious malformation of feotus
Northern Ireland Human Rights Commission (NIHRC) challenged the compatibility of the law with Art 3 (the prohibition of torture and of inhuman or degrading treatment), Art 8 (the right of everyone to respect for their private and family life) and Art 14 (the prohibition of discrimination) of the ECHR.
Although the UK Supreme Court declined (by a majority) to make the declaration of
incompatibility due to lack of standing, a majority of the court considered that the current law in Northern Ireland was disproportionate and incompatible with Art 8 ECHR. Northern Ireland
On October 22nd 2019 The Abortion (Northern Ireland) Regulations 2020 passed.
Since 2018 the UK Government funds abortions for women ordinarily resident in Northern Ireland, via the Government Equalities Office (GEO).
Role of Clinical Expertise in Abortion- Medicalisation of procedure
Rests on doctor’s judgement not woman’s choice as such
◦ Doctors need to act in good faith
◦ What if the doctor does not want to provide abortion? Conscientious objection
◦ What is good faith? (R v. Smith1974)
In the UK doctors have used the broad discretion accorded to them under the Abortion Act 1967 to respect patient autonomy. Now it is time to ‘update the law to bring it into line with modern medical practice, leaving abortion services subject to the same complex web of regulation that governs other aspects of healthcare provision’ (Sheldon 2016).
Abortion facts
Abortion is legal in the Great Britain under the Abortion Law 1967.
It was legalized in Northern Ireland by the passage of the Abortion (Northern Ireland) Regulations 2020 but remains broadly unavailable.
Approximately 25% of all pregnancies (excluding spontaneous miscarriages) currently end in abortion.
During the pandemic temporary measures put in place in March 2020 to allow women in Wales to take both abortion medications at home
On 30 March 2022, Parliament voted in favour of an amendment to the Health and Care Bill, making the temporary approval allowing home use of pills (mifepristone and misoprostol) for early medical abortions permanent in England and Wales.
